Several major federal environmental laws contain special provisions dedicated to the protection of whistleblowers. These include the Clean Air Act; Clean Water Act; Safe Drinking Water Act; Toxic Substances Control Act; Solid Waste Disposal Act; and Comprehensive Environmental Response, Compensation, and Liability Act (also known as the Superfund law).
The Environmental Protection Agency has specifically identified these laws, along with the Whistleblower Protection Enhancement Act of 2012 which broadly protects government employee whistleblowers, as available to protect environmental whistleblowers from any kind of retaliation or discrimination.
None of these provisions, however, provide financial rewards for whistleblowers (other than any back pay and special damages that may be awarded for a wrongful termination). The only environmental statute with any meaningful financial incentives for whistleblowers is the Act to Prevent Pollution from Ships.
The law was designed to ensure large ship vessels comply with all applicable environmental laws, and generally bars them from discharging into U.S. waters untreated sewage, graywater, and other harmful substances. The law’s whistleblower award clause provides that the government “may pay from any fines or civil penalties collected under this section an amount not to exceed one-half of the penalty or fine collected, to any individual who furnishes information which leads to the payment of the penalty or fine.”
Click here for more on the statute, including a link to the full text of the statute.
Outside the environmental protection statutes, there are several such as the Endangered Species Act and the Lacey Act, that offer whistleblower awards. The False Claims Act—the lynchpin of the American whistleblower system—also provides financial rewards for whistleblowers reporting environmental-related offenses.
The law allows whistleblowers to (i) bring a lawsuit on the government’s behalf for any fraud or misconduct that caused the government to suffer a financial loss, and (ii) obtain between 15 and 30 percent of the government’s recovery. The types of conduct generally covered by the statute involve the government overpaying for a product or service, paying for a product or service it did not receive, or paying for a product or service that is substandard or otherwise different from what the government agreed to purchase.
In the context of environmental fraud or misconduct, this could include:
- Overcharging the government on environmental cleanup projects.
- Failing to perform environment cleanup work as promised or required.
- Making false representations in connection with the bidding or work done on environmental projects.
- Making false representations relating to compliance with certain environmental regulations or contract requirements.
- Falsely certifying compliance with environmental laws and regulations.
- Making false representations to avoid paying environmental fines.
- Making false representations to avoid securing required environmental permits or approvals.
- Making false representation to secure government funding for environmental remediation or improvements.
One recent example of environmental whistleblowers obtaining a financial reward under the False Claims Act occurred with the Natural Resources Defense Council and several former employees of Lockheed Martin. As a result of their reporting, Lockheed Martin and two subsidiaries agreed to pay $5 million to resolve allegations they violated the Resource Conservation and Recovery Act (RCRA) and the False Claims Act by submitting claims for payment under their contracts with the Department of Energy to operate the Paducah Gaseous Diffusion Plant in Kentucky.
According to the whistleblowers, the companies failed to identify and report hazardous waste produced and stored at the facility, and failed to properly handle and dispose of the waste. The whistleblowers collectively received a whistleblower award of $920,000 from the proceeds of the government’s recovery. Click here for more.
Additionally, the False Claims Act was implicated in the massive BP Deepwater Horizon oil spill in the Gulf of Mexico in 2010. The explosion and fire at BP’s Macondo well, less than 50 miles off the coast of Louisiana, sent more than three million barrels of oil into the Gulf of Mexico over a period of nearly three months, resulting in oil slicks extending across more than 43,000 square miles.
In October 2015, BP agreed to pay $20.8 billion to resolve the government claims of BP’s gross negligence. Although the bulk of the settlement related to BP’s violations of the Clean Water Act and Oil Pollution Act, some portion of the settlement also accounted for violations of the False Claims Act. Click here for more.
To the extent you bear witness to any environmental crimes or misconduct—and these days there seems to be a lot of it—you should speak up and be heard. Not only are there strong protections available to protect environmental whistleblowers, there also may be a financial reward to make it doubly worthwhile.